Law Times

PAGE 12 FOCUS June 27, 2011 • Law Times charges under the Provincial Off ences Act, so is it time to streamline the process to re- move things like parking in- fractions from the courts? Th at was a key question considered in an interim re- port on the act by the Law Commission of Ontario. As the report notes, almost 11 per cent of the 2.8 million park- ing tickets issued in Toronto in 2009 resulted in a request for a trial. Th e numbers were lower in other cities. In Ottawa, for example, there were trial re- quests in just two per cent of the cases, while in Brampton, Ont., the number was four per cent. Certainly, moving to an ad- ministrative monetary penalty model instead of a fi ne system would save time and money. Time to move parking tickets out of court? J BY GLENN KAUTH Law Times ustices of the peace spend almost 60 per cent of their time on the most minor Ontario has allowed munici- palities to establish adminis- trative penalties for parking infractions since 2001, but so far only Vaughan, Ont., and Oshawa have moved forward. But Mohan Sharma, the 'The real dilemma is that most people who go to provincial offences court are unrepresent- ed,' says Carole McAfee Wallace. An administrative model us- ing non-judicial adjudicators imposes a penalty once an enforcement offi cer detects an infraction, whereas a fi ne takes eff ect only after defen- dants have pleaded guilty or the court has convicted them. head of the law commission project, says saving time and money wasn't the key con- cern. "I think the paramount consideration is the message it sends to the public about our system of justice," he tells Law Times. "In our view, the justice system and the Ontario Court of Justice should be used to hear more serious cases." Th e report recommended a two-year delay before imple- menting provincial legislation mandating administrative monetary penalty regimes for parking off ences. It also sug- gested that the government review a number of minor off ences under the Highway Traffi c Act to see whether they should also be subject to an ad- ministrative system. "Th ere are a variety of fac- tors that might come into play," says Sharma, who notes that switching to a swifter penalty regime for off ences like failing to wear a seatbelt could raise constitutional issues. "Some academics said that might not be as routine [as parking] if police are racial profi ling," he notes. According to Sharma, con- stitutional and administrative concerns have so far been key reasons why most munici- palities have yet to move away from a court-based system. For example, if an off ender doesn't pay the penalty, there needs to be some way for towns and cit- ies to report that to the Min- istry of Transportation. As a result, they'd need some sort of technological infrastructure to do so, Sharma notes. He's not, however, overly concerned about constitution- al issues stemming from an administrative monetary pen- alty regime for parking tickets. What matters, he says, is "the nature of the off ence. If the penalty is one that approaches being high, some might ques- tion going to an [administra- tive] model." For Carole McAfee Wal- lace, the idea of extending an administrative regime beyond parking off ences to other Highway Traffi c Act matters raises concerns. Her transpor- tation law practice at Weir- Foulds LLP focuses in part on representing trucking com- panies facing Highway Traf- fi c Act charges, and she notes that while some off ences may seem minor, they can have sig- nifi cant implications for those convicted. "Th e consequences of a conviction are very signifi - cant for a trucking company's safety record," she says. With minor speeding of- AN AUTHORITATIVE GUIDE TO THE INTERPRETATION AND APPLICATION OF SECTION 50 NEW PUBLICATION THE LAW OF SUBDIVISION CONTROL IN ONTARIO, THIRD EDITION SIDNEY H. TROISTER, LSM Every real estate lawyer knows that section 50 affects all real estate transactions in Ontario. This is the only resource to help guide you through the intricacies of this complicated section. Written by renowned expert Sidney Troister, this text has become known as a leading Planning Act resource since its original publication in 1988. This indispensable and practical text helps you analyze and assess the validity of title and address any problems that may arise. This new third edition updates the law and practice and includes: • updated case law and commentary • updated legislation • new commentary on the effect of land titles conversion and the automation and parcellization of title • a detailed section on the validation of title • analysis of and recommended strategies for dealing with the complex problems that arise under section 50 fences, for example, a convic- tion may not mean a penalty in terms of points but it could af- fect insurance rates. At the same time, the off ence could end up on the trucking company's com- mercial vehicle operator's reg- istration. Th e result would be a diminished safety record with the Ministry of Transportation. "Because the administra- tive monetary regime has lim- ited scope for defences, they wouldn't have the full range of defences," says McAfee Wallace. She gives the example of a trucker who pulls into an in- spection station only to fi nd something wrong with the brakes. Th e fi ne would be $300, but if the company can show due diligence by proving there had been maintenance and in- spections on the truck accord- ing to its policies, it could have a viable argument against the charge in court. But an ad- ministrative monetary penalty model off ers less scope to make a full answer and defence, says McAfee Wallace. Nevertheless, she welcomes Hardbound • 464 pp. January 2011 • $139 P/C 1002010000 ISBN 978-0-88804-514-0 Price subject to change without notice, to applicable taxes and shipping & handling. Visit canadalawbook.ca or call 1.800.565.6967 for a 30-day no-risk evaluation the idea of taking parking tick- ets out of the courts, where she says she faces long delays in getting matters to trial. In To- ronto, she notes, it can take up to a year to get a trial. "Th e real dilemma is that most people who go to provincial off ences court are unrepresented," she says, adding it's diffi cult to get the hour or two required to de- fend a case. "If you want to run full-blown trials, it's hard." At the same time, McAfee Wallace believes that if the province is going to move to- wards an administrative mon- etary regime, it needs to pro- vide some scope for accused to defend themselves and some leeway on the penalty. "A lot of thought needs to go into moving something other than parking tickets into an [ad- ministrative] regime," she says. Sharma, meanwhile, says CANADA LAW BOOK® Untitled-5 1 www.lawtimesnews.com 6/21/11 11:16:45 AM the law commission has re- ceived lots of support in the feedback on the interim report so far. A fi nal report should be ready by the fall, he notes.

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